10 F. 4 -

10 F1d 4

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Case Text

FEDERA.L REPORTER.

practice it was usual to examine witnesses abroad by written interrogatories and cross-interrogatories. The provision of rule 68, for taking testimony in an equity case, after it is at issue, by deposition, according to the acts of congress, is still in force. Under sections 863 and 1750 of the Revised Statutes, depositions de bene e8se in civil causes may be taken in a foreign country by any secretary of legation or consular officer. The mode of taking such depositions under sections 863, 864, and 865 is by oral questions put at the time, if desired, and not necessarily by written interrogatories given to the officer before commencing the taking. It is the same mode provided for by the amendment to rule 67. As, after either party has given notice to the other that he desires the evidence to be adduced in the cause to be taken orally, the testimony is not, except for special reasons, to be taken otherwise, so, by analogy, where testimony in a foreign country can be taken orally, it ought not, except for special reasons, to be taken otherwise. What would in any given case be sufficient special rea· sons must be left to be decided in each case. In the present case the defendants are, I think, entitled to cross-examine the plaintiff orally. There is no reason why his direct examination should not be· taken on written interrogatories if desired.

LEWIS

v.

HITCHCOCK

and another.

January 26,1882.)

(Di8trict Court, 8. D. New York.

1. CIVIL

RIGHTS ACT-DEMURRER-INN-RESTAURANT-VIDELICET.

In an action to recover a penalty of $500 under section 2 of the civil rights act of March I, 1875, (18 St. at Large, part 3, p. 335, Sup. Rev. St. 148,) the ';)laintiff must allege and prove that he is a " citizen." Where the penalty is claimed fOr a denial of the privileges of an "inn," under the first section of that act, the complaint will be held sufficient on demurrer if it alleges a denial of those privileges "at a certain inn, to-Wit, a. restaurant at No.9 Chatham street." The word" restaurant" has no fixed and certain legal meaning, and a place known by that name mayor may not be an inn; i. e., provide lodgings as well as food for guests. The description of the place in question under a videlicet is not repugnant to the previous description as an inn; if it were, 8embie it would be disregarded.

Demurrer to Complaint. Peter Mitchell and John F. QU(/'rles, for plaintiff. N. J. Dittenhoefer and Albert Englehardt, for defendants.

.LEWIS V. HITCHCOCK.

5

BROWN, D. J. This is an action brought by the plaintiff to recover a penalty of $500 under section 2 of the civil rights act of March·1, 1875, (18 St. at Large, part 3, p. 335, Supp. Rev. St. 148.) The complaint states, in substance, that the defendants are "proprietors of a certain inn, to-wit, a restaurant at No. 9 Chatham street," in this city, and that on the fourth day of November, 1881, the plaintiff, a colored person, was refused food or refreshments there by orders of the defendants on account of his race or color. The defendants demur to the complaint on the grounds-First, that the plaintiff does not allege in his complaint that he is a "citizen;" and, second, that the place kept by the defendants is, in effect, alleged to be a mere restaurant and not an "inn." Section 2 of the act above referred to provides that "any person who shall violate the foregoing section, (section 1,) by denying to any citizen, except for reasons by law applicable to citizens of every race and color, regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, shall forfeit and pay the snm of $500 to the person aggrieved thereby, and shall also be deemed guilty of a misdemeanor," etc. Section 1 declares that "all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the aceommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude." It will be noticed that section 2, which imposes the penalty sought to be recovered in this case, is limited to a denial of the rights referred to in the first section to "any citizen." The distinction between citizens and aliens is maintained in so many public statutes that it can· not be supposed that the use of the word "citizen" in this section is without reference to its proper signification of persons either born or naturalized in this country. The ordinary rule is that criminal and penal statutes like the present are to be construed strictly-that is, they are not to be extended beyond the fair and natural meaning of the language used; and there is nothing in the nature of the subject from which it can be presumed that congress intended to legislate in this instance for the benefit of aliens, so as to make it criminal for our citizens to refuse to aliens the privileges referred to. To entitle himself to recover the plaintiff must therefore prove that he is a "citi·

6

FEDERAL REPORTER.

zen." ,Such an allegation should therefore appear upon the face of the complaint, and the complaint is insufficient on demurrer for want of it. U. S. v. Taylor, 3 FED. REP. 563; Mersc1'ole v. Union Paper Collar Co. 6 Blatchf. 356. This would be sufficient to dispose of the present demurrer; but as this defect may be cured by amendment, and as the parties have argued at length the second ground of demurrer above stated, it is proper that the views of the court should also be stated on that point. 1'he only part of section 1 under which plaintiff's cause of action can come is that which concerns the "accommodations, advantages, facilities, and privileges of inns. " The complaint charges that the plaintiff was denied these privileges at. a "certain inn, to-wit, a restaurant at No.9 Chatham street." The defendants contend that this averment is defective in not alleging unequivocally that the place where the accommodations were denied him was in fact an inn where travelers are lodged and fed; and because the statement of the complaint is only equivalent to an allegation that the place was a restaurant, which the plaintiff means to claim is in law an inn. n such were the proper eonstruction of the language of the complaint, the objection would be well taken. The plaintiff cannot recover except upon proof that the place was an inn in the legal sense; that is, a place provided for the lodging and entertainment of travelers. A coffee-house, or a mere eating-house, is not an inn. To constitute an inn there must be some provision for the essential needs of a traveler upon his journey, viz., lodging as well as food. 'rhese two elements of an inn may doubtless be present in very disproportionate degrees, as the needs of the situation may require; hut both must in some degree be present to constitute an inn. Story, Bail, § 475; Carpenter v. Taylor, 1 Hilt. 193; Wintermute v. Clark, 5 Sandf. 242; People v. Jones, 54 Barb. 316. rt was not necebsary for the plaintiff in his complaint to allege anything more than that the place was an inn, as that is an ancient English word with a fixed and definite legal signification, and must be held to be so used in the statute of 1875. The term "restaurant" has no definite legal meaning. In Webster's Dictionary it is not even recognized as a word yet Anglicised. As currently understood it doubtless means only, or chiefly, an eating-house. But not unfrequently a bar forms a part of it; sometimes lodgings in addition; and it is also just as currently understood that in numerous resorts termed restaurants some lodgings for travelers are provided or alleged to be provided, so as to obtain a license for the sale of liquors, which is

LEWIS

v. HITCH COOK.

'1

allowed under the excise law of this state to taverns, or inns, only. Sess. Laws N. Y. 1857, c. 628, §§ 2,8, 13; Behan v. The People, 17 N. Y. 516; Schwab v. The People, 4 Hup. 520. However this may be, it is sufficient to say that the term "restaurant" has no such fixed and definite legal meani'l1g as necessarily to exclude its being an inn in the legal sense. It may be an inn, or it may not be, The bywhiah it goes is of litaccording to its real tle or no account, (Carpenter v.' Taylor, 1 Hilt. 195,) and the court cannot say judicially that the place in question; though described ,as preunder a videlicet as a restap,rarnt, may not also be an viously averred. ' The description of this place under'a videlicet as "a; restaurant at No. 9 Chatham str!)et" is not,therefore, necessarily repugnant to the previous averment that the place was an inn. The office of a. videlicet is to give some additional particulars of time, place, or circumstance explanatory of previous statements made in general terms. A videlicet is not allowed to render nugatory previous averments othenfise good. ' In Gleason v. McVickar, 7 Cow., 43, it is said by the court, in telation to allegations under a vide[ice't, "if they be impossible or contrary or repugnant to the preceding matter they shall be rejected as surplusage and void." 2 Saund.298, note 1. Under this rule, if a restaura.nt could not possibly be an inn, the description under the videlicet would be rejected as repugnant to the previous statement that the place was an iim. For the reasons above stated, however, there is no necessary repugnance between the two; and I consider the whole statement, taken together, as equivalent to an averment that the place referred to, though called a restaurant, was, in fact, an inn,and the complaint in this respect is, therefore, held sufficient. On the first ground of objection, however, the demurrer must be sustained and judgment entered for the defendants, unless the plaintiff within 20 days amend his complaint and pay the costs of the demurrer.

A statute of a state authorized commissioners, appointed for a town, tQ borrow money and execute bonds for the town in aid of a railroad company, and provided that they should exercise their authority only upon the condition that the assent of a majority of the taxables should be obtained, which should be proved by the affidavit of one of the assessors of the town. The statute made it the duty of the assessors to make such affidavit when the requisite assents should have been obtained. Held, that bona fide purchasers of the bonds are not required to show that the requisite number of taxables assented to their issue, as the affidavit of the assessor is conclusive in their favor; and that the decision of the highest court of the state to the contrary, if rendered after the rights ohuch purchasers were acquired. is not binding upon a circua court of the United States.

At Law.

E. B. Thomas, for complainant. Wm. Gleason, for defendant. WALLACE, D. J. The evidence shows, what so frequently appears in actions upon coupons and -municipal bonds, that the plaintiff purchased the coupons, at the snggestion of those who formerly owned them, with a view to collecting them in this court, when it was supposed a recovery could not be obtained upon them in the state courts. By the terms of the purchase the former owners guaranty the collection of the coupons. The plaintiff is protected from costs if he is defeated, and it may be conjectured, from the fact that he is not to pay for the coupons until two years and a half after the time of purchase, that it was intended by the parties he should not pay for them at all. if, in the mean time, the suit which he should bring should be decided adversely to him. Nevertheless, underthe repeated decisions of this court, as the plaintiff is the owner of the coupons, he can maintain this action, and his intent in acquiring them is immaterial. McDonald v. Smalley, 1 Pet. 620; Barney v. Baltimore City, 6 Wall. 288; Osborne v. Brooklyn City R. Co. 5 Blatchf. 368. He is the real party in interest and that suffices. Allen v. Brown, 44 N. Y. 228. It has heretofore been held by this court that a bona fide holder of these coupons is entitled to recover thereon notwithstanding the irregnlarities which took place in the issuing of the bonds. Foote v. Town of Hancock, 15 Blatchf. 343. Since that decision the court of appeals has decided to the contrary. Cagwin v. Town of Hancock, 12 W. D. 96.